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Parrott Appeal Brief FILED

Parrott Appeal Brief FILED

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THE COURT SPECIAL APPEALS MARYLAND 

September Term, 2012 
No. 01445 
NEIL PARROTT, al. 
Plaintiffs-Appellants, 
JOHN MCDONOUGH etc., al., 
Defendants-Appellees. 

BRIEF APPELLANTS 
Trial Court: 
Neil Parrott, al. John McDonough, al. 

Circuit Court for Anne Arundel County, Case No. 02-C-12-172298 
The Honorable Ronald Silkworth 

  Paul Orfanedes Chris Fedeli JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, 20024   Tel: (202) 646-5172 Fax: (202) 646-5199 Email: porfanedes@judicialwatch.org 
cfedeli@judicialwatch.org 
Attorneys for Appellants Neil Parrott and MDPetitions.com 
Dated: March 19, 2013 
TABLE CONTENTS 

 TABLE CONTENTS ..................................................................................................... 

TABLE AUTHORITIES...............................................................................................ii 

INTRODUCTION ............................................................................................................... 

STATEMENT THE CASE ........................................................................................... 

STATEMENT THE QUESTION PRESENTED .......................................................... 

FACTUAL BACKGROUND ............................................................................................. 

STANDARD REVIEW................................................................................................. 

ARGUMENT....................................................................................................................... 	
The Ballot Language was Misleading and Insufficient Matter Law........10 

II. 	
The Illegal Ballot Language Delegitimized the Vote Question and  
Must Remedied ........................................................................................... 

CONCLUSION .................................................................................................................
 
CERTIFICATE COMPLIANCE ................................................................................ 

CERTIFICATE SERVICE.......................................................................................... 

APPENDIX ................................................................................................................... 

TABLE AUTHORITIES
 
Cases Page 
Anne Arundel County McDonough, 277 Md. 271 (1976) ... 10, 11, 13, 14, 16, 20, 21,
 Citizens Against Slots PPE Casino Resorts, 429 Md. 176 (2012) ................................ 
Doe Montgomery County Board Elections, 406 Md. 697 (2008) ............................... 
Fletcher Lamone, 831 Supp. 887 (D. Md. 2011) ........................................... 
Green Party Maryland Board Elections, 377 Md. 127 (2003) ........................... 22, 
Kelly Vote kNOw Coalition Maryland Inc., 331 Md. 164 (1993) ................. 10, 13, 
Morris Governor Maryland, 263 Md. (1971) ...................................................... 
Ross State Bd. Elections, 387 Md. 649 (2005) ............................................................ 
Surratt Prince Georges County, 320 Md. 439 (1990) ........................... 10-12, 14-17, 
Seussman Lamone, 383 Md. 697 (2004) .......................................................................
 Vieth Jubelirer, 541 U.S. 267 (2004) ............................................................................
 Wesberry Sanders, 376 U.S. (1964) .......................................................................... 

Maryland Constitutional Provisions, Statutes, Rules, and Regulations 
Md. Const., art. XVI,  ...............................................................................................
 Md. Code Ann., Cts. Jud. Proc.  12-301...................................................................... 
Md. Code Ann., Elec. Law  7-103 ................................................................................... 
Md. Code Ann., Elec. Law  9-203 ................................................................... 11, 15, 
Md. Code Ann., Elec. Law  9-209 ................................................................... 13, 21, 

Md. Code Ann., Elec. Law  12-202  .......................................................................... 21, 

Md. Code Ann., Elec. Law  12-204  .......................................................................... 21, 

Other Authorities 
Annapolis Capital Gazette, Our Say: Vote against Question  and gerrymandering, Oct. 25, 2012, available www.capitalgazette.com/opinion/our_say/our-say-voteagainst-question-and-gerrymandering/article_488a0327-05d8-5513-bd94a40ba6e861c7.html .......................................................................................................... 
Martin Austermuhle, They Should Call Marymandering, DCist, Jan. 2012, available http://dcist.com/2012/01/they_should_call_it_marymandering.php ............................... 
Baltimore Sun, Against Question Our view: Voters should pick their elected representatives, not the other way around, Oct. 21, 2012, available www.baltimoresun.com/news/opinion/bs-ed-redistricting-20121021,0,4931422.story ..... 
Carroll County Times, Editorial: Vote against gerrymandered map, Oct. 28, 2012, available www.carrollcountytimes.com/news/opinion/editorials/editorial-vote-againstgerrymandered-map/article_c048793f-d12e-5446-809a-188692d001e8.html ................... 
Ilya Gerner, Americas Ugliest Congressional Districts, Comedy Central, Sept. 26, 2012, available www.indecisionforever.com/blog/2012/09/26/americas-ugliestcongressional-districts ......................................................................................................... 
Jack Benoit Gohn, Interaction and Interpretation the Budget and Referendum Amendments the Maryland Constitution  Bayne Secretary State, Md. Rev. 558, 572 (1980) ................................................................................................................. 
Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. Rev. 593, 615 (December 2002) .............................................................................................................. 
The Gazette, Gazette endorsement: Vote for fairer redistricting map, Oct. 24, 2012, available www.gazette.net/article/20121024/OPINION/710269991/1266/vote-for-afairer-redistricting-maptemplate=gazette ......................................................................... 
Shira Toeplitz, Top Ugliest Districts: Partisan Gerrymandering 101, Roll Call, Nov. 10, 2011, available www.rollcall.com/features/Election-Preview_2011/election/top-5ugliest-districts-210224-1.html ........................................................................................... 
Washington Examiner, Examiner Local Editorial: Maryland referenda, just say no,
 Oct.
 13, 2012, available  http://washingtonexaminer.com/examiner-local-editorial-onmaryland-referenda-just-say-no/article/2510611 ................................................................ 

Washington Jewish Week, Vote no Question Oct. 24, 2012, available  
http://washingtonjewishweek.com/main.asp?SectionID=31SubSectionID=29ArticleI D=18210 .............................................................................................................................. 

Washington Post, Vote against Maryland redistricting, Oct. 19, 2012, available 
www.washingtonpost.com/opinions/vote-against-marylandredistricting/2012/10/19/dc06c282-1967-11e2-bd10-5ff056538b7c_story.html................
 Dane Waters, The Initiative and Referendum Almanac, (Carolina Academic 

Press 2003) ....................................................................................................................... 

INTRODUCTION 
The November 2012 vote Marylands new congressional districts was illegal because the ballot failed inform the voters what they were voting on.  The ballot language was unlawfully misleading because failed describe the true nature Senate Bill which was political gerrymandering. achieve this political gerrymandering, Maryland split its congressional districts into highly unusual shapes resembling broken-winged pterodactyls the words the federal court.1 However, the ballot failed give voters any inkling the dramatic changes this gerrymandering made their congressional districts.  Indeed, the ballot did not even inform voters that the gerrymandered redistricting made any changes Marylands existing congressional districts all. Instead, the language Question suggested that Senate Bill merely reauthorized extended the existing congressional districts, which would have otherwise susnsetted expired. The language Question was therefore misleading matter law. 
Question failed present voters with the purpose and nature Senate Bill concisely, otherwise permit average voter exercise intelligent choice meaningful way. mere words, the substantive portion Question was far shorter than even the legislative title Senate Bill  Question its entirety, asked Marylanders vote for against Congressional Districting Plan described simply follows: 
Establishes the boundaries for the States eight United States Congressional 
Districts based recent census figures, required the United States 
Constitution. 
Under credible reading did the above language inform voters  allow them infer 
 that the referendum asked them approve political gerrymandering. therefore remains unknown whether Marylanders prefer political gerrymandering, they are genuinely concerned with whether the General Assembly draws congressional districts ways that bear relationship local communities geographic county and municipal boundaries. The voters are entitled asked this question directly that they may accurately express their preferences. Anything less denial the peoples referendum rights under the Maryland Constitution.  Md. Const. Art. XVI  5(b).     
STATEMENT THE CASE 
Appellants challenge the Circuit Courts decision uphold the ballot language for Question the November 2012 General Election Ballot.  Question purports describe Senate Bill Chapter the 2011 Special Session the Maryland General Assembly, also known the Congressional Districting Plan (Senate Bill 1 Districting Plan). Appellants allege that the ballot language used present Question the voters was unlawfully misleading violation Section 9-203 the Maryland Election Code, which requires that each ballot must be easily understandable voters and must present all candidates and questions fair and nondiscriminatory manner.  Appellants are entitled judgment and relief under Section 9-209 the Maryland Election Code.  Since the relevant legal standard whether the language informs voters the full and complete nature the enactment which they are voting, thorough 
examination the nature the redistricting accomplished Senate Bill required.   
Following the passage Senate Bill 2011, group Maryland citizens filed federal lawsuit overturn the new congressional districts.  The plaintiffs that federal lawsuit argued, inter alia, that the Districting Plan was political partisan gerrymander and therefore violated the Equal Protection clause the Fourteenth Amendment.  Fletcher Lamone, 831 Supp. 887, 892 (D. Md. 2011).  The federal court found that Senate Bill did fact constitute political gerrymandering under U.S. Supreme Court precedent, but held that there was judicially manageable remedy available under federal law: 
 [P]laintiffs allege that Marylands redistricting plan impermissible partisan gerrymander. [T]his claim perhaps the easiest accept factually  Marylands Republican Party regularly receives 40% the statewide vote but might well retain only 12.5% the congressional seats. Recent cases have reaffirmed the conceptual viability such claims, but have acknowledged that there appear judicially discernible and manageable standards for adjudicating political gerrymandering claims. 
Fletcher, 831 Supp. 903-904 (internal citations omitted).  The concurring opinion was even more blunt: [I]t clear that the plan adopted the General Assembly Maryland is, any reasonable standard, blatant political gerrymander.  Fletcher, 831 Supp. 905 (Titus, J., concurring). 
Following this decision, later 2011 Appellants initiated petition drive that ultimately collected over fifty-five thousand signatures from registered Maryland voters order put Senate Bill referendum. July 20, 2012, the State Board 
Elections certified statewide referendum the Districting Plan.  Immediately 
thereafter, the Maryland Democratic Party filed lawsuit block the referendum and prevent the people Maryland from voting the gerrymandering question.  Following ruling the Circuit Court rejecting the Maryland Democratic Partys claims, the Court Appeals affirmed the decision per curiam order entered August 17, 2012, clearing the way for placement Senate Bill the ballot.  Only one business day later, the Secretary State prepared and certified the referendum ballot language.  Appellants initiated this lawsuit challenging the legality the ballot language August 29, 2012. September 2012, the Circuit Court ruled favor Defendants, from which this appeal the Court Special Appeals was taken.    
STATEMENT THE QUESTIONS PRESENTED 
This case presents the following two questions for the Court: 
Was the ballot language Question impermissibly vague and misleading violation Maryland law? 
Should this Court find the referendum results null and void and order re-vote Question 

STATEMENT THE FACTS 2011, the Maryland General Assembly redrew Marylands congressional districts into shapes that have become comedic fodder.  For example, Marylands new Third Congressional District has alternatingly been described the Ugliest Congressional District America,2 The Pinwheel Death,3 and broken-winged 
pterodactyl, lying prostrate across the center the State.4 See Joint Record Extract (E
__) E-166 (map showing Marylands Third District green).  Additional maps 
illustrating the extremely unusual nature Marylands Third District can found the 
links footnotes and below. result Senate Bill some have suggested 
changing the word gerrymandering Marymandering.5 
Upon placement the Districting Plan the ballot for referendum, newspaper 
editorial support for repealing the gerrymandered districts was overwhelming.  Voters 
were urged vote No Question the editorial boards the Baltimore Sun,6 the 
Annapolis Capital Gazette,7 the Carroll County Times,8 the Gazette,9 the Washington Ilya Gerner, Americas Ugliest Congressional Districts, Comedy Central, Sept. 26, 2012, available www.indecisionforever.com/blog/2012/09/26/americas-ugliestcongressional-districts. Shira Toeplitz, Top Ugliest Districts: Partisan Gerrymandering 101, Roll Call, Nov. 10, 2011, available www.rollcall.com/features/Election-Preview_2011/election/top-5ugliest-districts-210224-1.html. Fletcher Lamone, 831 Supp. 887, fn. (D. Md. 2011). Martin Austermuhle, They Should Call Marymandering, DCist, Jan. 2012, available http://dcist.com/2012/01/they_should_call_it_marymandering.php. Baltimore Sun, Against Question Our view: Voters should pick their elected representatives, not the other way around, Oct. 21, 2012, available www.baltimoresun.com/news/opinion/bs-ed-redistricting-20121021,0,4931422.story. Annapolis Capital Gazette, Our Say: Vote against Question  and gerrymandering, Oct. 25, 2012, available www.capitalgazette.com/opinion/our_say/our-say-voteagainst-question-and-gerrymandering/article_488a0327-05d8-5513-bd94a40ba6e861c7.html. 
Post,10 the Washington Examiner,11 and Washington Jewish Week.12 Nearly all editorials pointed out that the gerrymandered map would undermine the accountability Marylands congressional representatives the voters through either incumbent protection, reducing competitive congressional races, dividing communities prevent unified opinions about representatives.  These outcomes hurt citizens and undermine representative democracy Maryland.  Appellants are not aware single media outlet serving any part Maryland which endorsed Yes vote Question August 18, 2012, the Secretary State prepared and certified the ballot language for Question Newspapers immediately noted that the language was misleading, writing that politicians are also hoping Marylanders will confused the cryptic ballot wording, which implies  falsely  that voting for the current Carroll County Times, Editorial: Vote against gerrymandered map, Oct. 28, 2012, available www.carrollcountytimes.com/news/opinion/editorials/editorial-vote-againstgerrymandered-map/article_c048793f-d12e-5446-809a-188692d001e8.html. The Gazette, Gazette endorsement: Vote for fairer redistricting map, Oct. 24, 2012, available www.gazette.net/article/20121024/OPINION/710269991/1266/vote-for-afairer-redistricting-maptemplate=gazette. Washington Post, Vote against Maryland redistricting, Oct. 19, 2012, available 
www.washingtonpost.com/opinions/vote-against-marylandredistricting/2012/10/19/dc06c282-1967-11e2-bd10-5ff056538b7c_story.html.  Washington Examiner, Examiner Local Editorial: Maryland referenda, just say no, Oct. 13, 2012, available http://washingtonexaminer.com/examiner-localeditorial-on-maryland-referenda-just-say-no/article/2510611. Washington Jewish Week, Vote no Question Oct. 24, 2012, available 
http://washingtonjewishweek.com/main.asp?SectionID=31SubSectionID=29ArticleI D=18210. 
indefensible district lines constitutional requirement.13  Instead using the word legislative short title Senate Bill the substantive portion Question was mere words and omitted any reference the fact that the redistricting made material changes existing congressional districts. its entirety, the Question asked voters vote for against law that Establishes the boundaries for the States eight United States Congressional Districts based recent census figures, required the United States Constitution. E-200. about August 22, 2012, Delegate Neil Parrott spoke with representatives both the Secretary State and the State Board Elections concerning changing the language Question E-13.  The Secretarys representative indicated that the Secretary would not able revise the language the question.  Id. The representative the State Board Elections indicated that the Board also could not change the language Question which had been prepared and certified the Secretary. Id.  Consequently, both representatives effectively confirmed Delegate Parrott that they would make changes the language Question prior certification the full general election ballot before September 11, 2012.  E-13 
14. Annapolis Capital Gazette, Our Say: Vote against Question  and gerrymandering, Oct. 25, 2012, available www.capitalgazette.com/opinion/our_say/our-say-voteagainst-question-and-gerrymandering/article_488a0327-05d8-5513-bd94a40ba6e861c7.html. 
During these discussions with the Secretary and Board, Delegate Parrott submitted 
alternative ballot language the State attempt settle this matter, which also was provided the court below. E-34 (Tr. 15:17-19), E-50 (Tr. 31:25-32:4, 32:15-19), E-62 63. The settlement analysis showed that after passage the 1962 Maryland redistricting law, 54-word ballot question was used for the subsequent referendum which effectively described the proposed 1962 redistricting.  E-62. The 1962 ballot question language informed Maryland voters with specificity that their congressional district boundaries were being changed: act relating the Congressional Districts the State Maryland 
which provides that the State divided into eight districts instead seven 
and that the Eighth Congressional District shall composed Howard 
and Prince Georges Counties and making certain changes the Third and 
Fifth Congressional Districts this State. E-14, E-62. contrast, the ballot question language for Senate Bill made reference any the substantial boundary changes the congressional districts.  E-200. Nor does contain any readily understandable geographic references the new boundaries created Senate Bill any reference the map prepared the Governor and approved the General Assembly depicting these new boundaries.   
Appellants filed suit, asking the Circuit Court order declaratory and injunctive relief correct the ballot language.  E-9, E-15.  Appellants presented evidence the trial court demonstrating that the ballot language was misleading because failed describe the nature the redistricting, and instead included confusing reference U.S Constitutional requirements. E-50 (Tr. 31:6-14), E-55 (Tr. 36:23-37:2); See also 
Plntfs. Motion for Summary Judgment Memorandum Exhibit September 
2012, the Circuit Court ruled favor the State, from which this appeal the Court Special Appeals was taken. E-199. petition for writ certiorari was also filed with the Court Appeals, but that petition was denied September 2012.  E-212. Thereafter, November 2012, majority Maryland voters voted yes Question written. 
STANDARD REVIEW 
The Court Special Appeals reviews order granting summary judgment novo. Ross State Board Elections, 389 Md. 649, 658 (2005).  This Court must determine whether the Circuit Court ruled correctly matters law.  Doe Montgomery County Board Elections, 406 Md. 697, 711 (2008). 
ARGUMENT 
 The ballot language gave the voters Maryland idea they were being asked approve some the most gerrymandered districts the United States.  The language (and therefore, the vote) was illegal and violation the Maryland Constitution because failed apprise voters the true nature the redistricting, and because failed inform voters the broad scope the changes the existing congressional districts. This Court should remedy the unlawful actions declaring the referendum void and ordering re-vote Question with accurate language. The Ballot Language was Misleading and Insufficient Matter Law  
Question was misleading matter law under the holdings Anne Arundel County McDonough, 277 Md. 271 (1976) and Surratt Prince Georges County, 320 Md. 439 (1990). Those cases illustrate two established principles Maryland law which govern ballot language sufficiency: referendum ballot language must apprise voters the full and complete nature the proposed law, and referendum ballot language must fairly apprise voters the changes made the proposed law.  McDonough and Surratt present virtually identical facts the case bar.  Both cases dealt with language that was misleading virtue omitting from the ballot language critical facts and information necessary for voters understand the nature and purpose the law.  These principles were reiterated Kelly Vote kNOw Coalition Maryland, Inc., 331 Md. 164 (1993), which the Court further explained that ballot language must, minimum, advise voters the alterations the referred law has made the previous law. McDonough, complaint over ballot language was filed pre-election and decided post-election. The question issue McDonough concerned forty-one different amendments comprehensive county rezoning, while the ballot language simply asked voters to vote for against the rezoning.  Id. The Courts ruling was instructive: are convinced that the failure the ballot question present clear, 
unambiguous and understandable statement the full and complete nature the issues included Question D, constituted deviation from 
the prescribed forms the law [and] had vital influence probably have prevented free and full expression the popular will. 
McDonough, 277 Md. 307. Like the ballot question McDonough, the ballot question for Senate Bill failed inform voters that the preexisting boundaries congressional districts the State had been substantially altered.  Indeed, Senate Bill makes numerous and substantial changes these boundaries, and the Question language did not present clear, unambiguous and understandable statement the full and complete nature the issues. McDonough, 277 Md. 300. explained above, pp. 3-6 supra, the full and complete nature Senate Bill was the creation politically gerrymandered map. Because the Question language failed give voters clue about that fact with any reference boundary changes, was illegal under Section 9-203 the election code. Surratt, the ballot language asked voters vote for against law described as: To provide that all pending and future claims the County will only waive its immunity those instances where its officers and employees are liable.  Surratt 448. However, the court pointed out that this language ignored the fact that the real change the referred law was its inclusion non-severability provision, which was intended effect total repeal the waiver governmental immunity.  Id. Importantly for the present case, the Surratt court therefore held that both the effect and intent the referred law relevant whether the ballot language accurately describes the laws true nature.  Essentially, this common-sense test that asks simply whether the voter would know the actual purpose and effect the law she will vote just reading the ballot. The Court elaborated this rule: voter who read the ballot language would have inkling that vote favor the charter amendment could vote favor repealing absolutely the waiver governmental immunity that had existed Prince Georges County, one form another, since the original charter 1970.  Like the inaccurate, ambiguous and obtuse language before McDonough, the verbiage here did not and could not convey voter understanding the full and complete nature what the charter amendment involved. point fact, told the voter nothing about what really was involved. 
Surratt, 320 Md. 448 (internal citations omitted).  The court did not mince words concluding that this language was intentionally deceptive: It was misleading, and was calculated suggest the voter that the charter amendment would have virtually effect. . Surratt, 320 Md. 449 (italics original). 
Similarly, Question did not apprise voters the full and complete nature the Districting Plan, which was drastic carving-up county boundaries far more than required the 2010 Census the U.S. Constitution. Simply put, neither the 2010 Census nor the U.S. Constitution required the legislature draw the Third Congressional District the shape broken-winged pterodactyl which stretches from north Baltimore Montgomery County and then winds east Annapolis.  Any language that even suggests that the boundaries the Third Congressional District were required the U.S. Constitution and Census deceptive its face.  Just Surratt, Question was likely understood voters describing law which changed nothing and had virtually effect. Surratt, 320 Md. 449. Without reference the boundary changes Senate Bill made, Question appeared describe most minor changes that amounted mere reauthorization extension the previous districts, which were due sunset federal law. omitting reference changes the boundaries, and 
including superfluous verbiage about Census and U.S. Constitutional requirements, Question gave voters no inkling that they were being asked vote gerrymandered congressional districts. 
The lower court not only failed apply McDonough and Surratt its holding, but also applied the wrong holding from Kelly. The Circuit Court mistakenly cited isolated principle Maryland law articulated Kelly prohibiting courts from rewriting ballot language for the sake improved grammar.  E-202, Memorandum Opinion (We are not concerned with the capability this Court any the numerous advocates either side this issue draft better ballot language, citing Kelly, 331 Md. 174); E-209, Memorandum Opinion (It not the function this court rephrase the language the summary and title achieve the best possible statement the intent the amendment, citing Kelly, 331 Md. 174). However, the Kelly court upheld the ballot language that case precisely because the language accurately informed voters the true nature the referred law.   
The language Kelly explicitly stated that referred law was making changes state abortion policy. While the plaintiffs Kelly wanted the issues explained more clearly the ballot, that court properly held that the law only requires that the language inform voters, accurately and non-misleadingly, the purpose and nature the law. issue Kelly was legislation that made easier for Maryland minors obtain abortions without parental notification.  The ballot language made clear that the referred law was 
making easier for children get abortion without notifying their parents.  The 
relevant ballot wording Kelly described the referred enactment follows: Revises Marylands abortion law provide certain exceptions the requirement that physician notify unmarried minors parent guardian prior minors abortion.  Kelly, 331 Md. 168.  There was question that that language informed voters detail the true nature the measure they were voting on.  Plain and simple, that language directly informed voters that the law changed state policy make easier for minors get abortions: 
The language used the Secretary State accurately informed the voters the proposed change the law because stated that the referred measure creates certain exceptions the general requirement parental notification. indicating that the legislation establishes exceptions the parental notification provision, the ballot language concisely and intelligently summarized that portion the legislation. 
Kelly, 331 Md. 177. 
The Kelly court emphasized that the ballot language explicitly informed voters that passing the referendum would change existing law give minors more opportunities obtain abortions without parental notification.  The court concluded that the referendum language therefore gives considerable detail about the nature the issues addressed the measure. neither deceptive, was the case Surratt Prince Georges County, supra, nor vague was the case Anne Arundel County McDonough, supra. Kelly, 331 Md. 174.
 Unlike Kelly, the ballot question for the Districting Plan was both deceptive and vague. The language failed inform voters directly indirectly the nature the 
referred law  gerrymandering  because did not say word about specific changes 
the boundaries the congressional districts.  Senate Bill makes numerous and substantial changes these boundaries. voter reading Question might have believed Senate Bill would have virtually effect. Surratt, 320 Md. 449.  Furthermore, the language was deceptive because suggested that the congressional districts had drawn the form that they were order comply with the 2010 Census and the U.S. Constitution. Appellants are not suggesting the ballot language needed use the word gerrymandering satisfy Section 9-203.  However, minimum the language should have explained that the law was making substantial changes existing congressional district boundaries without suggesting that the Maryland legislature was compelled the federal Constitution. the proceedings below, Appellees mistakenly argued that any attempt more descriptive would misleading since voters not have choice return the former district boundaries.  E-205, Memorandum Opinion  That argument straw man, demonstrated the Department Legislative Services own summary Senate Bill The summary explains the consequences the referendum follows: If this question receives majority votes the 2012 general election, the States plan will remain force.  If, however, the question does not receive majority votes, the plan will repealed days after the official canvass votes and different plan will enacted. E-118. This summary was submitted the Circuit Court the States own Hearing Exhibit E-36 (Tr. 17:14-15).  Accordingly, the question had been presented 
with fair language, voters would have understood the choice one between accepting 
the new gerrymandered map the one hand, ordering their elected representatives draw different map the other  exactly the Maryland General Assemblys Department Legislative Services stated. 
Finally, order find that the phrases based recent census figures and as required the U.S Constitution were non-misleading, the Circuit Court mischaracterized the purpose the particular districts drawn Senate Bill merely for compliances sake. The federal court correctly noted that the purpose drawing the boundaries they were was political gerrymandering.  However, the Circuit Court unjustifiably concurred with Appellees proffered explanation and wrote that the purpose the Districting Plan was to bring the State into compliance with the constitutional requirements per the results the 2010 census.  E-205, Memorandum Opinion  This flawed analysis ignored the full and complete nature Senate Bill leading the Circuit Court uphold the inclusion phrases which masked the true nature the referred enactment violation Maryland law.  McDonough, 277 Md. 307; Surratt, 320 Md. 448. This Court should reverse. 
II. 	The Illegal Ballot Language Delegitimized the Vote Question and Must Remedied host factors this case dictate that the only sufficient remedy the illegal ballot language decision holding the referendum results nullity and ordering re-vote Question stated the Initiative and Referendum Almanac: How 
initiatives ballot title worded can make break the initiative.14 This reinforces the 
critical importance that Marylands ballot language laws strictly applied. Appellants argued below, Maryland courts have always held that the way the ballot language written has the greatest impact the voter.  E-26 (Tr. 7:24-8:8), E-32 (Tr. 13:18-14:3), E-33 (Tr. 14:17-22). that language drawn illegally obscure the purpose effect law upon which the people are being asked vote, amount mailed publicity will overcome this illegality.  Id. This illegal ballot language could not have been cured with more explanatory voter guide mailings the State, because the moment greatest impact when the voter confronted with the ballot the voting booth. Surratt, 320 Md. 450. 
Appellants submitted six sworn affidavits from voters demonstrating the ballot language was misleading.  E-50 (Tr. 31:6-14), E-55 (Tr. 36:23-37:2); See also Plntfs. Motion for Summary Judgment Memorandum Exhibit  Moreover, plain reading the language its face shows that apprised voters not all the nature the law they were voting on. The purpose Senate Bill  and this case  was and gerrymandering.  Since the ballot question was almost surgically worded not give voters inkling what really was involved the referendum, the wording was plainly illegal. Surratt, 320 Md. 447. Seven local newspapers urged Marylanders vote no Question vote for gerrymandered district vote disempower Dane Waters, The Initiative and Referendum Almanac, (Carolina Academic Press 2003). 
oneself voter.15 one should conclude that the peoples will was clearly expressed 
with the vote taken Question worded.   
The irony the fact that the State used confusing ballot language for referendum question about gerrymandering should not lost this Court.  The misleading language prevented Marylanders from fully exercising their right informed vote the question how responsive Marylands elected representatives should the people they represent.  This fact militates strongly favor re-vote.  The question gerrymandering  when fairly asked  ultimately one how accountable elected legislators should their constituents.  The reason why gerrymandering disfavored because widely considered undermine representatives accountability those who elect them.16 voting districts are safe and uncompetitive for elected representative, the representative does not need fear losing office and has less incentive responsive the genuine interests his her See supra Vieth Jubelirer, 541 U.S. 267, 319-320 (2004) (We explained that legislatures should bodies which are collectively responsive the popular will, and accordingly described the basic aim legislative apportionment achieving fair and effective representation for all citizens. Consistent with that goal, also reviewed claims that the majority had discriminated against particular groups voters drawing multimember districts that threatened minimize cancel out the voting strength racial political elements the voting population.  Such districts were vulnerable constitutional challenge racial political groups had been fenced out the political process and their voting strength invidiously minimized.) (internal citations and punctuation omitted). 
constituents.17  Instead, representatives may focus merely advancing the interests 
their political party, may simply promote their own agendas. contrast, the purpose Marylanders right referendum increase the 
accountability legislative bodies the interests their constituents.18 Since the 
Question ballot language gave voters inkling that they were being asked vote 
gerrymandering, the peoples right referendum was effectively denied.  This denial 
ensured passage law that will allow the General Assembly become even more 
insulated from the interests the people.  The only sufficient remedy for this illegality 
voiding the referendum results and ordering new election using ballot language that 
informs voters the true nature Senate Bill Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. Rev. 593, 615 (December 2002) (Representatives remain faithful the preferences the electorate and responsive shifts preferences long they remain accountable electorally. Thus, while not enforce campaign promises within the normal bounds contract law, the same function performed imperfectly the accountability individual representatives for their success failure accurately representing their constituents preferences. the extent that elections are structured limit accountability, whether inordinately high filing fees, restrictive petitioning requirements get the ballot, gerrymandered districts, the key role accountability compromised.). Jack Benoit Gohn, Interaction and Interpretation the Budget and Referendum Amendments the Maryland Constitution  Bayne Secretary State, Md. Rev. 558, 572 (1980) (The period during which the [Maryland] referendum amendment was being formulated and ratified, 1914 1915, was the heyday the Progressive movement.  One the principal programs the Progressives was so-called direct legislation, lawmaking the electorate.  The theory and indeed the reality those times was that laws passed legislatures were likely reflect the will political bosses rather than that the electorate. The vehicles direct legislation, the initiative and the referendum, were designed wrest control the processes legislation from the distrusted legislatures. .). 
This Court should therefore award relief similar that awarded McDonough. McDonough, the court found that the ballot language deficiency meant voter could not have knowledgeably exercised his franchise and declared the referendum results a nullity and effect. McDonough, 277 Md. 307.  Accordingly, the proper relief this case nullify the results the referendum and require re-vote Question  this time with accurate description law whose purpose was gerrymandering. 
Given the unique nature ballot questions compared elections for political office, ordering new election Question would the relief least likely prejudice any party. Whereas ordering re-vote election for office prejudices the winning candidate favoring the loser, all parties the present case should want the same thing 
 namely, accurate assessment the will the people, taken ballot without confusion controversy. Marylanders indeed favor the new gerrymandered districts, could not possibly harm anyone ask the people confirm their preference with language that accurately reflects the laws purpose and effect.  Indeed, since the Appellees this case are public servants who must place the interests the citizens Maryland above all else, they should welcome the opportunity remove all doubt both the legality and democratic legitimacy Senate Bill   
This Court may review the validity Question and award the requested relief.  McDonough, 277 Md. 305. Appellants have demonstrated that the ballot language did not permit average voter exercise intelligent choice meaningful way. therefore necessarily follows that the illegal language affected the outcome the election. Seussman Lamone, 383 Md. 697, 716-721 (2004).  Because the voters were not exercising intelligent choice, the outcome the election itself nullity, which literally means that the election never happened. McDonough, 277 Md. 307. conclusion can drawn from whether the outcome would have been different had the voters been asked vote the law subject referendum, because they were never asked. Instead, they were asked different question about different law. most, the voters were asked whether Maryland should comply with its obligation ensure each congressional district has roughly the same population.  This the one person, one vote rule, and unlike gerrymandering, actually required the U.S. Constitution. Wesberry Sanders, 376 U.S. (1964). 
Even though the language would affect the election outcome under Sections 7103, 12-202 and 12-204 the Election Code, the Circuit Court accepted the case request for relief under Section 9-209 the Election Code, which applies violations whether not the violations will affect the outcome election.  The Circuit Court stated: [p]laintiffs have standing seek judicial review under  9-209 the Election Law Article and therefore are not required establish that the outcome the election would affected absent the grant relief. E-201, Memorandum Opinion fn. Importantly, either avenue appellate review this case will lead the same result.   See McDonough, 277 Md. 307 (We are convinced that the failure the ballot question present clear, unambiguous and understandable statement the full and 
complete nature the issues had vital influence probably have prevented free and full expression the popular will.).  This Court may therefore reach the same result whether decides this case appeal authorized either Sections 12-202 and 12-204 the Elections Code, Section 9-209 the Elections Code and Section 12301 the Courts and Judicial Proceedings Code.  Citizens Against Slots PPE Casino Resorts, 429 Md. 176, 190 (2012). 
Furthermore, well within this Courts powers remand this case with instructions for the Circuit Court order new election Question pursuant Section 9-209(b)(3), with easily understood, fair and nondiscriminatory ballot language pursuant Sections 9-203(1) and (2).  See Surratt, 320 Md. 447. Although the question which the alternate ballot language proposals Appellants submitted below ultimately one for this Court, Appellants believe that language option Number the most compliant with Maryland law. E-63. Within the constraints the word limits and the obligation concise, the law should always favor ballot language that most fully describes the true nature and purpose law submitted for referendum.      
Finally, matter what relief this Court decides order, minimum this Court should rule favor Appellants the legal question presented because one that capable repetition, yet evading review. Green Party Maryland Board Elections, 377 Md. 127, 138 (2003). Green Party, the Court Appeals invalidated Board Elections rule requiring active voter signatures for nominating candidate for the ballot, holding that the Boards failure count inactive voters signing 
the petition violated the Maryland Constitution. Green Party, 377 Md. 152-153 
([W]e hold that any statutory provision administrative regulation which treats inactive voters differently from active voters invalid.).  However, the court did not order re-vote that the Green Party could placed the ballot for the election question. 
Since the Circuit Court failed apply McDonough and Surratt and misapplied Kelly, unambiguous ruling the Court Special Appeals now reversing the Circuit Court will ensure that future referenda are not put the voters Maryland with patently non-descriptive and misleading ballot language.19 minimum, since the congressional districts Maryland could even further gerrymandered again the future, decision correcting the lower courts opinion needed ensure that the peoples right referendum redistricting policy not forever lost.  For example, this Court could rule that, this case, the law required the Board Elections use the legislative title place the language prepared because the legislative title shall sufficient for ballot questions, and therefore presumptively reasonable.  Md. Const. art. XVI,  5(b).  See also McDonough, 277 Md. 296. See also Morris Governor Maryland, 263 Md. 20, (1971) (If the legislative titles had been used the ballots could hardly argued that the legislature, result what specified each bill did not fully meet the constitutional directives. .).     
CONCLUSION 

There wide difference between what Senate Bill actually accomplished and the way was described the ballot. The illegal ballot language therefore deprived Maryland voters fair opportunity approve reject the law, and therefore justifies re-vote Maryland Question within this Courts broad powers order such remedy, and party this case likely prejudiced such outcome.  Whatever the remedy, the Court should unequivocally find that the lower court ruling was error and reverse it. 
For all the foregoing reasons, the decision the Circuit Court should REVERSED and REMANDED. Dated: March 19, 2013 Respectfully Submitted, Paul Orfanedes 
      Paul Orfanedes      Md. Bar No. 9112190026 Chris Fedeli 
      Chris Fedeli      Md. Bar No. 0012120179 
      JUDICIAL WATCH, INC.
      425 Third Street, S.W., Suite 800 
      Washington, 20024 
      Tel: (202) 646-5172 
      Fax: (202) 646-5199 
      Email: porfanedes@judicialwatch.org 
cfedeli@judicialwatch.org 
Attorneys for Appellants 
CERTIFICATE COMPLIANCE certify that this brief complies with all requirements Maryland Rule 8-112, 8503 and 8-504. The brief has been prepared 13-point, proportionally spaced Times New Roman font with 2.0 spacing between lines, pursuant Rule 8-112(c).  Chris Fedeli
       Chris Fedeli 
CERTIFICATE SERVICE hereby certify that this 19th day March, 2013, caused true and correct 
copy the foregoing BRIEF APPELLANTS served, via email and courier, 
the following: 
    William Brockman     Julia Doyle Bernhardt    Jeffrey Darsie     OFFICE THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor    Baltimore, 21202-2021  Chris Fedeli
       Chris Fedeli 
APPENDIX  
CITATION AND VERBATIM TEXT PERTINENT CONSTITUTIONAL 
PROVISIONS, STATUTES, ORDINANCES, RULES,  
AND REGULATIONS 

Table Contents Page 
Table Contents ...........................................................................................................
Md. Const., art. XVI,  ............................................................................................... 
Md. Code Ann., Cts. Jud. Proc.  12-301..................................................................
Md. Code Ann., Elec. Law  7-103 ...............................................................................
Md. Code Ann., Elec. Law  9-203 ...............................................................................
Md. Code Ann., Elec. Law  9-209 ...............................................................................
Md. Code Ann., Elec. Law  12-202  ............................................................................
Md. Code Ann., Elec. Law  12-204  ............................................................................

Md. Const. art. XVI,  
Section Text measures furnished voters; ballots; proclamation result election 
(a)
 The General Assembly shall provide for furnishing the voters the State the text all measures voted upon the people; provided, that until otherwise provided law the same shall published the manner prescribed Article XIV the Constitution for the publication proposed Constitutional Amendments. 

(b)
 All laws referred under the provisions this Article shall submitted separately the ballots the voters the people, but containing more than two hundred words, the full text shall not printed the official ballots, but the Secretary State shall prepare and submit ballot title each such measure such form present the purpose said measure concisely and intelligently. The ballot title may distinct from the legislative title, but any case the legislative title shall sufficient. Upon each the ballots, following the ballot title text, the case may be, each such measure, there shall printed the words "For the referred law" and "Against the referred law," the case may be. The votes cast for and against any such referred law shall returned the Governor the manner prescribed with respect proposed amendments the Constitution under Article XIV this Constitution, and the Governor shall proclaim the result the election, and, shall appear that the majority the votes cast any such measure were cast favor thereof, the Governor shall his proclamation declare the same having received majority the votes have been adopted the people Maryland part the laws the State, take effect thirty days after such election, and like manner and with like effect the Governor shall proclaim the result the local election any Public Local Law which shall have been submitted the voters any County the City Baltimore. 

Md. Courts and Judicial Proceedings Code Ann.  12-301 
 12-301. Right appeal from final judgments Generally  
Except provided  12-302 this subtitle, party may appeal from final judgment entered civil criminal case circuit court. The right appeal exists from final judgment entered court the exercise original, special, limited, statutory jurisdiction, unless particular case the right appeal expressly denied law. criminal case, the defendant may appeal even though imposition execution sentence has been suspended. civil case, plaintiff who has accepted remittitur may cross-appeal from the final judgment. 
Md. Election Law Code Ann.  7-103 
 7-103. Text questions  
(a)
 County attorney defined. this section, county attorney means: 

(1)
 the attorney law department established county charter local law represent the county generally, including its legislative and executive officers; 

(2) the county charter local laws provide for different attorneys represent the legislative and executive branches county government, the attorney designated represent the county legislative body. 

(b)
 General guidelines. Each question shall appear the ballot containing the following information: 

(1) question number letter determined under subsection (d) this section; 

(2) brief designation the type source the question;

 (3) brief descriptive title boldface type; 

(4) condensed statement the purpose the question; and 

(5)
 the voting choices that the voter has. 

(c)
 Duty prepare question.

(1)
 The Secretary State shall prepare and certify the State Board, not later than the third Monday August, the information required under subsection (b) this section, for all statewide ballot questions and all questions relating enactment the General Assembly which petitioned referendum.

 (2)
 The State Board shall prepare and certify the appropriate local board, not later than the second Monday August, the information required under subsection (b) this section for all questions that have been referred the voters one county part one county pursuant enactment the General Assembly. 

 (3)
 (i) The county attorney the appropriate county shall prepare and certify the appropriate local board, not later than the third Monday August, the information required under subsection (b) this section for each question voted single county part county, except question covered paragraph (1) paragraph (2) this subsection. 

(ii) the information required under subsection (b) this section has not been timely certified under subparagraph (i) this paragraph, the clerk the circuit court for the jurisdiction shall prepare and certify that information the local board not later than the fourth Monday August. 

(iii) local board shall provide copy each certified question the State Board within hours after receipt the certification from the certifying authority. 
(d)
 Numbering lettering.

(1)
 Each statewide question and each question relating enactment the General Assembly which petitioned referendum shall assigned numerical identifier the following order:

 (i) years sessions the General Assembly which enacted; and 

(ii)
 for each such session, chapter numbers the Session Laws that session. 

(2) question that has been referred the voters one county part one county pursuant enactment the General Assembly shall assigned alphabetical identifier order established the State Board. 

(3)
 Questions certified under subsection (c)(3)(i) (ii) this section shall assigned alphabetical identifier order established the certifying authority, consistent with and following the questions certified the State Board. 

Md. Election Law Code Ann.  9-203  9-203. Standards  
Each ballot shall: 
(1) easily understandable voters; 

(2)
 present all candidates and questions fair and nondiscriminatory manner; 

(3) permit the voter easily record vote questions and the voter's choices among candidates; 
(4)
 protect the secrecy each voter's choices; and 

(5)
 facilitate the accurate tabulation the choices the voters. 

Md. Election Law Code Ann.  9-209  9-209. Judicial review 
(a)
 Timing. Within days after the content and arrangement the ballot are certified under  9-207 this subtitle, registered voter may seek judicial review the content and arrangement, correct any other error, filing sworn petition with the circuit court for Anne Arundel County. 

(b)
 Relief that may granted. The circuit court may require the State Board to: 

(1)
 correct error; 

(2)
 show cause why error should not corrected;

 (3)
 take any other action required provide appropriate relief. 

(c)
 Errors discovered after printing. error discovered after the ballots have been printed, and the State Board fails correct the error, registered voter may seek judicial review not later than the second Monday preceding the election. 

Md. Election Law Code Ann.  12-202  12-202. Judicial challenges 
(a) general. other timely and adequate remedy provided this article, registered voter may seek judicial relief from any act omission relating election, whether not the election has been held, the grounds that the act omission: 

(1) inconsistent with this article other law applicable the elections process; and 

(2)
 may change has changed the outcome the election. 

(b)
 Place and time filing. registered voter may seek judicial relief under this section the appropriate circuit court within the earlier of: 

(1) days after the act omission the date the act omission became known the petitioner; 

(2) days after the election results are certified, unless the election was gubernatorial primary special primary election, which case days after the election results are certified. 

Md. Election Law Code Ann.  12-204 
 12-204. Judgment 
(a) general. The court may provide remedy provided subsection (b) (c) this section the court determines that the alleged act omission materially affected the rights interested parties the purity the elections process and:

 (1)
 may have changed the outcome election already held;

 (2)
 may change the outcome pending election. 

(b)
 Act omission that changed election outcome. the court makes affirmative determination that act omission was committed that changed the outcome election already held, the court shall: 

(1)
 declare void the election for the office question involved and order that the election held again date set the court; 

(2) order any other relief that will provide adequate remedy. 

(c)
 Act omission that may change outcome pending election. the court makes affirmative determination that act omission has been committed that may change the outcome pending election, the court may: 

(1) order any relief considers appropriate under the circumstances; and 

(2) the court determines that the only relief that will provide remedy, direct that the election for the office question involved postponed and rescheduled date set the court. 

(d)
 Clear and convincing evidence. determination the court under subsection (a) this section shall based clear and convincing evidence. Fletcher Lamone, 831 Supp. 887, fn. (D. Md. 2011).



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